If SCOTUS won't act to overturn Citizens United, the states will
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No one expected this kind of election season, but one glimmer of light has emerged: Voters of both parties (or no party) have come to challenge what they see as a rigged system that benefits wealthy and corporate elites.


Much of that stems from the Supreme Court’s 2010 Citizens United decision, which opened the floodgates of corporate money and ultimately led to the creation of “super PACs” on both sides. According to a Bloomberg Politics poll conducted last year, more than 78 percent of Americans want to overturn that decision in order to restore a democracy that gives voice and power to everyday people, not just the wealthy few.

Our unbalanced political system tilts in favor of the wealthy.

Wealthy donors and ordinary Americans have vastly different opinions on how to run America, yet the wealthy few are the only ones who have a real say in the policies that are passed by Congress and many states. We the people have a fundamental right to political equality. That means the ability to participate equally at all stages of the electoral process regardless of wealth, race, sex, religion, sexual orientation, or any other factor.

We have the right to not have our votes weighted and devalued by those who vote with their dollars. But in Citizens United and other decisions, the U.S. Supreme Court gutted the protections of political equality when dealing with big money in politics.

Living in Montana, a state that elects state judges, I am seeing first-hand how important it is that everyone has an equal say in the electoral process. 


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A judge risks the appearance of bias in the courtroom when that judge is compelled to raise funds from a narrow group of lawyers, business executives, and interest groups, who may appear in court before that judge. Dark money groups disparage the records and reputations of respected judges who don’t march lockstep with their agendas.

Similarly, whether the election is for governor, state legislature, and other elected offices, everyone understands that big contributors have more influence than ordinary voters. Indeed, unless We the People act, all branches of government are going to become a wholly owned subsidiaries of mega-money interests. 

Montana has been at the forefront of fighting back against unequal influence, often by voter initiative when the legislature was not up to the task.

Over a century ago, the voters passed a ban on corporate political spending to fight back against a political takeover by the “Copper Kings” and mining companies which at one point controlled 90 percent of the state’s press and most of the legislature. In 1994, the voters, by a broad bipartisan majority, passed an initiative that set some of the lowest political contribution limits in the country.

Unfortunately, the Supreme Court has sided with wealthy donors who challenge these types of laws as unconstitutional. 

While on the Montana Supreme Court, I was forced to write an opinion on whether Montana’s corporate spending limits were constitutional. As much as I valued preserving the integrity of Montana’s electoral process and believed in the voters’ interest in encouraging the full participation of the Montana electorate, I was constrained by Citizens United. My hands were tied.

Not only did Citizens United prevent the federal government from limiting big money in politics, but the Supreme Court also left no room for the individual States to limit big money in politics. States and people are being restricted by this decision.

Meanwhile, just this spring, a federal court in Montana, applying what he understands to be the Supreme Court’s most recent thinking on the matter, struck down the state’s voter-passed political contribution limits, on the supposed theory that the state has no real interest in setting any limits on contributions.  

To be sure, the problem does not start or end with Citizens United. The Supreme Court set us down this path in a 1976 decision called Buckley v. Valeowhich rejected political equality as a reason to limit money in politics.

After Citizens United, many campaign finance cases have been litigated in court and even more power has been shifted away from everyday people. As much as we hope that a new U.S. Supreme Court Justice can solve the problem, we don’t want to rely on just one individual when the pendulum can swing back and forth.

It is up to us — We the People — to restore democracy. That’s why, in 2012, 75 percent of Montana voters supported a resolution calling on the state to seek a constitutional amendment to overturn Citizens United. Sixteen other states, and over 700 local communities, have joined them. This November, the voters of California on Prop-59 and Washington on I-735 also have the chance to speak up for democracy and for a democracy of We the People.

James Nelson was appointed by Governor Mark Racicot to the Montana Supreme Court in 1993 and served as a Justice until his retirement in 2013. Jasmine Gomez is the 2016-18 Democracy Honors Fellow at Free Speech For People.

The views expressed by contributors are their own and not the views of The Hill.